Ohio et al v American Express Co et al - Potential Effects on the Competition Bureau's and Competition Tribunal's Views of 'Multi-Sided Platforms'

Abstract

‘Multi-sided platforms' and ‘Big Data' are given significant attention by the Competition Bureau's guidelines and discussion papers. Both regulators and practitioners are debating the appropriate lens through which 'Multi-Sided Platforms' should be viewed, whether through the traditional approaches of market definition and the Hypothetical Monopolist Test (the SSNIP test) or through novel, specialized tools and methods. On June 25, 2018, the US Supreme Court ruled in a 5/4 decision that American Express' ‘anti-steering provisions' with merchants did not violate U.S. antitrust laws. The Majority opinion defined the relevant market as the credit card network-a transaction platform constituting both sides of a two-sided platform, facilitating a single simultaneous transaction between merchants and cardholders. The Majority rejected the plaintiff's argument that increasing merchant fees was proof of anticompetitive acts, because it did not demonstrate anticompetitive effects on both sides of the credit card market. The Dissent, however, dismissed such a non-traditional market definition as un-precedented in antitrust law. This article analyzes how the US Supreme Court's decision may affect the way Canada's Competition Bureau and Competition Tribunal perceive ‘Multi-Sided Platforms'. Will the traditional or novel approach to competition law prevail?